GUEST POST BY DAVID KURTZ FROM TPM

Readers here will have no trouble recalling the many times I have given the US legal system the “benefit of the doubt” regarding how we deal with Trump, as he has over at Talking Points Memo. I now completely agree 100% with what he has to say here.

The Judicial System Is Failing Democracy

In retrospect, I came into the Trump era with way too much confidence that the legal system was up to the task. The last eight years have been humbling in that regard.

As a lawyer-turned-editor, I cautioned my reporting team not to be impatient with the pace and deliberation of legal processes. These things take time. Don’t be hot-headed about it. Chill out. Let things run their course.

The sometimes plodding pace of the system is by design, more a feature than a bug. There’s an entire vernacular around the downsides of too-swift justice: “rough justice,” “lynch mob,” “show trial,” “railroaded.” The list is long.

In the early days of the Trump presidency, efforts to obtain his tax returns or enforce the Emoluments Clause were slow, clumsy, and sometimes reluctantly undertaken by Democrats in Congress. I was inclined to excuse that slowness. But as the threat mounted and become more obvious and the reaction to it failed to rise to the challenge, my own sense of urgency began to change.

When the travesties of the Trump presidency accumulated and potential accountability shifted from the political to legal realms, especially after the Jan. 6 attack, I feared that the legal system was more inclined to sweep it all under the rug than confront it. A lot of our coverage was focused on framing the Jan. 6 attack as merely the culmination of a broad, months-long conspiracy to subvert the election. While the attack on the Capitol did historic damage and finally started to stir law enforcement into action, over-focusing on the physical attack would miss the myriad other ways the election had been subverted using the powers of the executive branch.

In the years since, it has become obvious that the slowness of the legal system isn’t merely the result of a careful, deliberative adherence to the rule of law and the procedural protections necessary to do proper justice. It is also a product of a wariness in confronting Trump and his legions of supporters, an unreasonable tendency to give him the benefit of the doubt, the judiciary’s own overweening sense that it is above politics, and a fundamental failure to appreciate that a strongman who attempted to seize power unlawfully once is a threat to the very existence of the legal system itself.

When the legal system itself is under threat, it must respond with extraordinary measures that continue to protect the procedural and substantive rights of the individual defendant but girds the system against attack, prioritizes institutional self-preservation, and is self-conscious of its role as a bulwark of democracy.

Some individual jurists, like U.S. District Judge Tanya Chutkan, who only got the Trump Jan. 6 case last August, have performed admirably. The legal system as a whole has not. The former chief judge in DC warned last fall that we are “at a crossroads teetering on the brink of authoritarianism.” During the sentencing yesterday of Trump White House official Peter Navarro, U.S. District Judge Amit Mehta called bullshit on it being a “political prosecution.” Also yesterday, in the sentencing of a Jan. 6 rioter, U.S. District Judge Royce Lamberth, a long-serving Reagan appointee, let it rip:

The Court is accustomed to defendants who refuse to accept that they did anything wrong. But in my thirty-seven years on the bench, I cannot recall a time when such meritless justifications of criminal activity have gone mainstream. I have been dismayed to see distortions and outright falsehoods seep into the public consciousness. I have been shocked to watch some public figures try to rewrite history, claiming rioters behaved “in an orderly fashion” like ordinary tourists, or martyrizing convicted January 6 defendants as “political prisoners” or even, incredibly, “hostages.” That is all preposterous. But the Court fears that such destructive, misguided rhetoric could presage further danger to our country.

Six months ago, it looked like the first weeks of the new year would be dominated not by the GOP primary but by pretrial preparations for a whopping four criminal trials of Trump. The race was finally on to hold Trump to account for his cheating in the last two elections before he cheated in a third one. As we sit here at the end of January, the landscape is not what we anticipated.

The Mar-a-Lago case is almost guaranteed to happen after the election. So is the Georgia RICO case. The Jan. 6 case is stuck on pretrial appeals, with the DC Circuit and Supreme Court failing to push things along. The lesser of the four cases – the hush money case in New York – may be the only one tried before the election. Meanwhile, there’s a chance Trump will be brought down by the Disqualification Clause but no one is confident the courts will enforce that against him either.

I’ve gone from annoyed about the repeated complaints about the slowness of the system to sharing those sentiments myself to having my hair on fire that the gravity of the moment calls for so much more than the legal system is prepared to offer. In a way this a mea culpa for urging my staff over the last few years to chill out. Things have not been this urgent since the 1860s. And we’re failing.

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